Valdez v. City of Las Vegas

• Decision Date: 02 May 1961
• Docket Number: No. 6745,6745
• Citation: 1961 NMSC 52,361 P.2d 613,68 N.M. 304
• Parties: Francisco VALDEZ, a Minor, by his next friend, Joe E. Valdez, Plaintiff-Appellant, v. CITY OF LAS VEGAS, a Municipality, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 613

361 P.2d 613

68 N.M. 304

Francisco VALDEZ, a Minor, by his next friend, Joe E Valdez, Plaintiff-Appellant, v. CITY OF LAS VEGAS, a Municipality, Defendant-Appellee.

No. 6745.

Supreme Court of New Mexico.

May 2, 1961.

McAtee, Toulouse, Marchiondo, Ruud & Gallagher, Manuel Garcia, Jr., Albuquerque, for appellant.

Catron & Catron, Santa Fe, for appellee.

MOISE, Justice.

The plaintiff-appellant, a 17 year old school boy, by his father as next friend, brought this suit to recover from Andy Gallegos and defendant-appellee City of Las Vegas damages resulting from being shot by Andy Gallegos. Both the City and Gallegos answered the complaint of plaintiff, the depositions of plaintiff and Gallegos were taken and thereupon the City filed a motion for summary judgment on the ground 'that the pleadings and depositions on file herein * * * show that there is no genuine issue as to any material fact relating to or upon which any liability on the part of said defendant could be found to exist and that defendant is entitled to a judgment in its favor as a matter of law.' Based upon the pleadings and depositions the court granted the City summary judgment and dismissed plaintiff's complaint. To review this action the appeal is prosecuted.

The facts necessary for a determination of this appeal gleaned from the pleadings and depositions are summarized as follows: that Andy Gallegos on February 24, 1959 was a member of the police force of defendant City assigned to special duty at Highlands University in said City. This was denied by the City in its answer, and Andy Gallegos, in his answer and deposition which is uncontroverted, asserted that he was an employee of Highlands University in said City of Las Vegas. He was a night watchman and peace officer employed and paid by the University. He had a peace officer's commission signed by the Mayor of defendant City, and also had a commission from the Town of Las Vegas and one from the County Sheriff. On occasions he had assisted the city police when requested to do so. He wore a blue policeman's uniform and a badge like the ones worn by city policemen.

It is not necessary for a decision herein to go into the facts surrounding the altercation between plaintiff and Gallegos which culminated in the shooting of plaintiff. It is sufficient to point out that the incident occurred on Highlands University property while Gallegos was performing his duties as its employee. Plaintiff alleged that at the time of the shooting Gallegos 'was employed by the City of Las Vegas and acting within the apparent scope of his duty, and otherwise so acting for the defendant City of Las Vegas as to make the City of Las Vegas liable to the plaintiffs herein.' These allegations were denied by the City of Las Vegas and aside from the facts recounted above there is no proof in the record touching on this allegation.

The plaintiff argues the case under one point in which he asserts that it is clear from an examination of the pleadings and depositions that a genuine issue of a material fact was present and that it was accordingly error to grant summary judgment. These issues are further particularized with the assertion that there was an issue as to whether or not Andy Gallegos was a member or officer of the City of Las Vegas, and whether or not the act done by him was by authority or in execution of the orders of the City.

These are material issues by virtue of Sec. 14-17-11, N.M.S.A.1953, which both parties agree is determinative and which reads as follows:

'No personal action shall be maintained in any court of this state against any member of officer of any municipal corporation in this state for any tort or act done, or attempted to be done, by such member or officer, when done by authority of such municipal corporation, or in execution of the orders thereof; in all such cases the municipal corporation shall alone be responsible; and any such member or officer may plead the provisions of this section in bar of such action whether the same be now pending or hereafter commenced.'

The cases in which the statute has been interpreted are Baca v. City of Albuquerque, 19 N.M. 472, 145 P. 110; Taylor v. City of Roswell, 48 N.M. 209, 147 P.2d 814; Brown v. Village of Deming, 56 N.M. 302, 243 P.2d 609; Cherry v. Williams, 61 N.M. 93, 287 P.2d 987; and Salazar v. Town of Bernalillo, 62 N.M. 199, 307 P.2d 186.

Without attempting to set forth the holdings of these cases in detail it is sufficient for our purposes here to point out that under the statute, in order for the tortious act to become that of the municipality and not of the employee the specific act must have been done by authority of the municipality or in execution of its orders. Baca v. City of Albuquerque, supra; Taylor v. City of Roswell, supra. On the other hand, if a police officer who is an employee of the City exceeds his authority or acts outside his orders he alone is responsible when injuries result. Brown v. Village of Deming, supra; Cherry v. Williams, supra; Salazar v. Town of Bernalillo, supra.

Upon attempting to apply these principles to the instant case we find ourselves met at the outset by the fact there certainly is an unresolved issue as to whether or not Andy Gallegos was a 'member or officer' of the City of Las Vegas. However, it makes no difference if he was or not if his acts were not done by authority of the City or in execution of its orders. There was no evidence before the trial court that the acts were so authorized, and the City...